Sima Malakar, W/o Late Karna Malakar v. Swapna Saha, W/o Sri Anil Kumar Saha
2018-03-08
AJAY RASTOGI
body2018
DigiLaw.ai
JUDGMENT : 1. The instant miscellaneous appeal has been filed by the claimants for enhancement of compensation u/Sec.173 of the Motor Vehicles Act, 1998 against the judgment and award dt.31.8.2016. 2. The facts, in a nutshell, which are relevant for the purpose leading to examine the matter, are that on 30.11.2013 at about 2.00 p.m. while the deceased Karna Malakar, the husband of the claimant appellant No.1 and father of the claimant appellant No.2, was proceeding from Dudhpur to Kumarghat on his motorcycle accompanied by two others through AssamAgartala road and while he reached at Bethcherra, it collided with a truck(oil tanker) which was coming from the opposite side with the abnormal/high speed in a rash and negligent manner knocked him down. As a result thereof, Karna Malakar sustained fatal injuries on his person and died instantaneously on 01.12.2013 at about 11.30 a.m. Autopsy was done over the dead body of the deceased Karna Malakar. 3. On the basis of the pleadings of the parties, two issues were framed before the Tribunal. “1. Whatever the deceased Karna Malakar died in a vehicular accident which took place on 30.11.2013 about 2 p.m. on AssamAgartala road at Betcherra, under Kumarghat P.S. due to rash and negligent driving of the offending vehicle bearing No.TR01T1912(Truck Oil Tanker) by its driver? 2. Whether the claimant petitioners are entitled to get compensation, if so, to what extent and who shall be held liable to pay the same?” 4. Taking note of the documentary evidence on record and so also his income, dependency of the claimants and future prospect etc. the ld.Tribunal in reference to issue No.2 came to a computation/calculation of the amount of compensation which the claimants were legitimately entitled for and the same is reproduced ad infra: Sl. No. Heads Calculation (i) Wages Rs.9,750/- 1/3rd of the wages has been deducted as personal expenses of the deceased. Rs.9,750/-minus Rs.3,250/-= Rs.6,500/- (iii) Compensation applied multiplier 15 considering the age of the deceased was 40 years at the time of accident. Rs.6,500×12×15 = Rs.11,70,000/- (iv) Miscellaneous/Conveyance. Rs.5,000/- (v) Loss of consortium Rs.1,00,000/- (vi) Loss of estate Rs.50,000/- (vii) Funeral Expenses Rs.35,000/- Total compensation awarded Rs.13,60,000/- S 5.
Rs.9,750/-minus Rs.3,250/-= Rs.6,500/- (iii) Compensation applied multiplier 15 considering the age of the deceased was 40 years at the time of accident. Rs.6,500×12×15 = Rs.11,70,000/- (iv) Miscellaneous/Conveyance. Rs.5,000/- (v) Loss of consortium Rs.1,00,000/- (vi) Loss of estate Rs.50,000/- (vii) Funeral Expenses Rs.35,000/- Total compensation awarded Rs.13,60,000/- S 5. The only question which has been raised by counsel for the claimants is that the ld.Tribunal has committed a manifest error in determining the age of the deceased and according to him, the documents which were placed on record i.e. Exbts.5 & 6 which are voter identity card and Aadhaar Card respectively of the deceased, he was 38 years of age on the date of incident but the ld.Tribunal had wrongly relied upon the medical report furnished by the Doctor wherein he opined that the deceased was 40 years of age at the time of accident for which there was no supporting material placed on record and this, according to him, is an apparent error that the ld.Tribunal has committed in determining the just compensation which the claimants of the deceased were legitimately entitled for under the law. 6. Counsel for the respondent, on the other hand, submits that the claimants relied upon Exbts.5 & 6 – voter identity card and aadhaar card of the deceased wherein itself there was a contradiction. In Exbt.5 the deceased has been mentioned as 19 years as on 01.01.1995 whereas in Exbt.6 the year of birth has been mentioned as 1976 and at the same time, Exbt.4 was the postmortem report of the deceased where the age has been mentioned as 40 years at the time of death. In such a situation when there was a contradiction in the documents relating to age and the ld.Tribunal in totality of the matter it has considered 40 years as the age of the deceased on the date of incident based on the post mortem report, it cannot be said to be a manifest error, which calls for any further interference. 7. That apart, counsel for the respondent further submits that the compensation which has been computed by the ld.Tribunal in the impugned award under the head of loss of consortium Rs.1,00,000/- has been awarded. At the same time, taking into consideration the principle which has been laid down by the Apex Court in its judgment in National Insurance Co. Ltd. Vs.
That apart, counsel for the respondent further submits that the compensation which has been computed by the ld.Tribunal in the impugned award under the head of loss of consortium Rs.1,00,000/- has been awarded. At the same time, taking into consideration the principle which has been laid down by the Apex Court in its judgment in National Insurance Co. Ltd. Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 , it has been observed that where the deceased was between the age of 4050 years claimants are entitled for consortium of Rs.40,000/and in totality of the matter, even what being prayed for by the appellant, if taken at the face value at least the overall compensation awarded will not vary and in the given facts and circumstances the present award needs no further interference by this court. 8. I have heard counsel for the parties and with their assistance perused the material on record. 9. Indisputably, no supporting evidence with regard the date of birth of the deceased was placed on record to supplement the voter identity card and aadhaar card which were relied upon by the claimants, Exbts.5 & 6 respectively of the deceased and that apart, in Exbt.5 the deceased has been mentioned as 19 years of age as on 01.01.1995 whereas in Exbt.6 the year of birth has been mentioned as 1996. There is a complete variance between the two documents Exbt.5 & Exbt.6 on which the claimants placed reliance to establish the age of the deceased on the date of accident as claimed to be 38 years. At the same time, Exbt.4 was the postmortem report, which has been prepared by the medical experts and the age of the deceased has been opined to be 40 years. Certainly, legal sanctity could be attached to document Exbt.4 in determining the age of the deceased at the time of the incident based on the medical expert.
At the same time, Exbt.4 was the postmortem report, which has been prepared by the medical experts and the age of the deceased has been opined to be 40 years. Certainly, legal sanctity could be attached to document Exbt.4 in determining the age of the deceased at the time of the incident based on the medical expert. In the given facts and circumstances, if the ld.Tribunal has proceeded in treating the age of the deceased as 40 years for determining the just compensation which the claimants were entitled for, no manifest error can be said to be committed and if two views are possible and the ld.Tribunal took a safer view to rely upon the opinion of the medical expert, there appears no manifest error committed by the ld.Tribunal in determining the age of the deceased in awarding just compensation to the claimants. 10. That apart, the Apex Court in the recent judgment of Pranay Sethi(supra) has laid down a broad principles which has to be considered and kept in mind while computing the just compensation and this Court feels it appropriate to quote para 61 of the judgment which is relevant for the present purpose, and the same reads ad infra: “61. In view of the aforesaid analysis, we proceed to record our conclusions: (i) The two Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 11. Apart from the other considerations, which have to be kept in mind while computing the compensation, in para 8 it has been observed that under conventional heads namely, loss of estate, loss of consortium and funeral expenses it should not be exceeded Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Indisputably, in the instance case, since the matter was decided much before the judgment being pronounced from the Apex Court in the head of loss of consortium Rs.1,00,000/- was awarded to the claimants and that according to the judgment of the Supreme Court, would not have exceeded Rs.40,000/for the loss of consortium. In the given facts and circumstances, even if what being contended by the claimants if taken at the face value, still the compensation which has been awarded may not substantially vary. 12. I find no reason to interfere in the instant appeal. Consequently, the appeal is without substance and accordingly, dismissed.